The U.S. House of Representatives asked an appellate court presiding over the Obama Administration’s appeal of a district court decision holding that cost-sharing reductions implemented under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) lack Congressional appropriation and that payment of reimbursements under the program is unconstitutional to temporarily pause proceedings. The House’s brief in response to the Administration’s brief in U.S. House of Representatives v. Burwell is due in late December, but the House argues that “a significant possibility of a meaningful change in policy” by President-Elect Trump’s incoming administration could either eliminate the need to resolve the appeal or drastically change the nature and scope of the issues. The House asked the court to hold the briefing schedule in abeyance until after the new president’s inauguration and to direct the parties to file a joint status report by February 21, 2017, indicating whether they will consider settlement or voluntary dismissal and, if not, to propose a new briefing schedule.

Section 1402 of the ACA requires insurers offering qualified health plans (QHPs) through the marketplace to reduce deductibles, coinsurance, copayments, and similar charges for eligible insured individuals enrolled in their plans. While the government is authorized to make payments to insurers to offset the costs of the reductions, Congress has never appropriated any funds for that purpose. In May 2016, the district court agreed with the House that such appropriations could not be inferred from section 1402 and that the government’s payments to the insurers were unconstitutional (see Court sides with House Republicans, finds no appropriation for cost-sharing reductions, May 18, 2016).

The Obama Administration does not show signs of backing down, but President-Elect Trump has pledged to work with Congress to repeal the ACA.